Under U.S. Department of Labor regulations, a meal period may be unpaid if the affected employee is “completely relieved of duty for the purposes of eating regular meals…. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.” 29 C.F.R. § 785.19(a). Employers adhering to this regulation have always presumed that, if a meal period were interrupted in any way,the employee would have to be paid for the meal period.
In Babcock v. Butler County, No. 14-1467 (November 24, 2015), the U.S. Court of Appeals for the Third Circuit rejected this standard in favor of a less restrictive “predominant benefit” test. While the test is fact-intensive, the essence of the test is that if the meal period is predominantly for the benefit of the employee, the meal period time may be uncompensated, whereas if the meal period is predominantly for the benefit of the employer, the meal period must be paid. According to the Third Circuit, the majority of courts of appeals that have addressed the issue have adopted the predominant benefit test.
The plaintiffs in Babcock were a group of correctional officers who sued the county for unpaid overtime based upon a collective bargaining agreement provision that called for officers to be given a one-hour meal period, of which 45 minutes were paid. The officers contended that they should be paid for the additional 15 minutes, as well, because of restrictions placed on their use of that time by the employer. The panel majority decided that, despite the restrictions, the meal period did not predominantly benefit the employer and that, therefore, the additional 15 minute segment was not compensable time. The dissenting judge reasoned that the restrictions were designed to insure that the officers were prepared, physically and mentally, to cut short their meal periods to return to duty at a moment’s notice and that, therefore, the entire one hour period should be treated as being compensable.
The “predominant benefit” test may give employers a defense when an employee is required during an unpaid lunch period to be available for an emergency call, as in the case of police officers or staff nurses, or when an office worker interrupts her lunch just long enough to take a single, short call. But because of its fact-intensive nature, employers may incur liability if an interruption is more than de minimis. So much of the advice that employers traditionally have been given about unpaid lunch periods – such as not to allow office workers to eat at their desks, where interruptions are likely – remains sound even under the predominant benefit test.
